V. Chitambaresh, J.

1. The plaint has been rejected for non payment of the balance court fee in a suit for specific performance by the judgment impugned in this Regular First Appeal. Only a nominal court fee of Rs. 25/- presumably under Schedule II Article 3(iii)(A)(1) of the Kerala Court Fees and Suits valuation Act, 1959 ('the Act' for short) is seen paid. A doubt was raised as to whether the appellant is obliged to pay the same fee as would be payable in the court of the first instance under S. 52 of the Act. The appellant thereupon relied on the decision in Thanappan v. Hassan Kappor (2003 (2) KLT 39) and the relevant part of it reads as follows :-

"Since the plaint was rejected under Order VII R. 11(b) of the C.P.C., there is no adjudication as to the subject matter of the suit. Hence we are of the view there is no justification in directing the parties to pay the ad valorem court fee."

It is beyond dispute that the definition of a decree under S. 2(2) of the Code of Civil Procedure, 1908 ('CPC for short') includes also the rejection of a plaint. The Act does not make any difference between an adjudicated decree and a non-adjudicated decree in the matter of filing an appeal under S. 52 thereof, two courses are open when a plaint is rejected for non-payment of balance court fee in that the plaintiff can either file a Regular First Appeal or apply for Review. The plaintiff has necessarily to pay one-half of the fee payable on the plaint in an application for review of the judgment under Schedule I Article 5 of the Act. Can the plaintiff be permitted to maintain a Regular First Appeal instead of a petition for Review after paying a nominal court fee as in the instant case?.

2. We heard Mr. N.M. Madhu, Advocate on behalf of the appellant and also Mr. Jayesh Mohankumar, Advocate as amicus curiae at length on the maintainability of the appeal.

3. The dissenting judgment of Mr. Justice Niyogi in Ganpati v. Venkatesh & Ors. (AIR 1935 Nag. 83) which has found favouring subsequent judgments is apposite. It reads:-

"The rejection of a plaint means only a refusal to entertain the suit and can in no case imply a conclusive determination of the rights of the parties with regard to the matters in controversy in the suit, when there is admittedly none. It would not therefore be correct to lay down that the rejection of a plaint is such a complete and final determination of the rights of the parties that there is no room in any appeal from such an order for the proposition that the subject matter in appeal is not the same as the subject matter of the original suit. All that can with strict accuracy be said about the rejection of the plaint is that it conclusively determines that the plaintiff is not entitled to bring the suit on any court fee, stamp of a value less than what has been found by the court............On this analysis, it is transparent that the matter in dispute is whether the appellant is liable to pay the ad valorem court fee demanded of him or not........It must follow that that issue alone can be regarded as being the subject matter of the appeal."

(emphasis supplied)

The Madras High Court chose to follow the above dissenting judgment in Kaliyappa Goundan v. Kandaswami Goudan ((1938) 1 MLJ 662) when it observed in this regard as follows:-

"In the differing judgments in Ganpati v. Venkatesh (AIR 1935 Nag. 83 (F.B.)) the two rival views have been fully expounded in my opinion, the view taken by Niyogi, AJC is, with all respect, the sounder one. As he points out, the rejection of a plaint means only a refusal to entertain the suit and can in no case imply a conclusive determination of the rights of the parties. Order VII R. 13 Civil Procedure Code, which provides that the rejection of a plaint, inter alia, for failure to pay the deficit court fee, shall not preclude the plaintiff from presenting a fresh plaint, lends support to that view."

(emphasis supplied)

4. It is interesting to note that a later Full Bench of the very same